Dubs ex rel. Dubs v. Northern Pacific Railway Co.

181 N.W. 606 | N.D. | 1921

Birdzell, J.

(after stating the facts as above). The only specification of error on this appeal is the action of the court in vacating the order and judgment previously made and entered, and in granting a new trial. We are of the opinion that the court erred in the manner specified.

Without passing on the effect upon the jurisdiction of the trial court of the respondent’s appeal from the judgment and the order denying a new trial, we are of the opinion that the strongest position he can occupy with respect to this order is that, after the first motion was denied.and judgment entered, he might have moved for a new trial again upon an additional ground, such as newly discovered evidence, not embraced in his former motion. The ruling of the trial court on the former motion had become final, and, so far as that court was concerned, it could not be reviewed. Jones v. Frank, 62 Okla. 26, 161 Pac. 795; Luke v. Coleman, 38 Utah, 383, 113 Pac. 1023, Ann. Cas. 1913B, 483; Coyle v. Seattle Electric Co. 31 Wash. 181, 71 Pac. 733. A trial judge cannot review its own rulings indefinitely after they have become embodied in judgments. If so, judgments would never become final and the limitation upon appeals would become ineffective. There would be no end to litigation. While the respondent relies upon the case of Davis v. Jacobson, 13 N. D. 430, 101 N. W. 304, in support of his contention that this court must consider the order appealed from as granting a new trial upon any ground which might support it, regardless of the fact that the trial judge stated specifically why it was granted, we are of the opinion that the rule of that case does not apply here; for, presumably, all grounds except the loss of the stenographic notes had been presented to the trial judge in the original motion, and at the time this second motion was made he was without power to reconsider the grounds ruled upon in deciding the first. The order appealed from must, therefore, stand or fall, depending upon the sufficiency of the ground assigned to support it; namely, the loss of the shorthand notes.

The second motion for new trial was not based upon any grounds recognized by the statute as a foundation for such a motion. Comp. Laws 1913, § 7660. Neither did it call to the attention of the trial court any ground which would have authorized it to grant a new trial upon its own motion. Comp. Laws 1913, § 7665. Even if the motion be regarded as an application for relief from a judgment on the ground of inadvertence or surprise under § 7483, Comp. Laws 1913, it is equally without statutory support, for the surprise or inadvertence involved in the loss of the shorthand notes in no way contributed to the entry of the judgment or affected the defense to the same.

It his been repeatedly held in this and other jurisdictions that the statutory grounds for motion for a new trial are exclusive. Higgins v. Rued, 30 N. D. 551, 153 N. W. 389, and cases therein cited; Baker v. Citizens’ State Bank, — Okla. —, 177 Pac. 568; Stanton v. Chicago, B. & Q. R. Co. 25 Wyo. 138, 165 Pac. 993, 167 Pac. 709. And judgments cannot be vacated in district court except in pursuance of stattory authority. McKenzie v. Bismarck Water Co. 6 N. D. 361, 71 N. W. 608.

The respondent, however, relies upon the doctrine sometimes asserted, to the effect that where a party, without his fault, is deprived of the right to have his case reviewed by a higher court tkrough inability to procure a transcript and a settled statement of the case, a new trial may properly be awarded. Much authority may be found in support of this rule. 20 R. C. L. 288; 12 Ann. Cas. 1056, note; 25 L.R.A.(N.S.) 860, note; L.R.A.1915B, 353, note. Among the principal cases supporting this doctrine are: State v. Bess, 31 La. Ann. 191; Borrowscale v. Bosworth, 98 Mass. 34; Crittenden v. Schermerhorn, 35 Mich. 370; State v. Reed, 67 Mo. 36; State ex rel. Downing v. Gaslin, 32 Neb. 291, 49 N. W. 353; Sanders v. Norris, 82 N. C. 243; Bailey v. United States, 3 Okla. Crim. Rep. 175, 25 L.R.A.(N.S.) 860, 104 Pac. 917; Tegler v. State, 3 Okla. Crim. Rep. 595, 139 Am. St. Rep. 976, 107 Pac. 949; Elliott v. State, 5 Okla. Crim. Rep. 63, 113 Pac. 213; Fire Asso. of Phila. v. McNerncy, — Tex. Civ. App. —, 54 S. W. 1053; Nelson v. Marshall, 77 Vt. 44, 58 Atl. 793; Richardson v. State, 15 Wyo. 465, 89 Pac. 1027, 12 Ann. Cas. 1048; Hume v. Bowie, 148 U. S. 245, 37 L. ed. 438, 13 Sup. Ct. Rep. 582. These authorities are of little assistance to us in determining this appeal; for, while an examination of them discloses that the principle has frequently been applied where invoked in a proper proceeding, it does not appear that the authorities have recognized the rule as being sufficiently potent to work an amendment of the statute governing motions for a new trial. Upon examination it will be found that the courts of Michigan, Missouri, North Carolina, Oklahoma, and Wyoming recognized the right and the power of an appellate court to grant a new trial where an appellant— particularly in criminal cases — is, without his 'fault, unable to submit a statement of the case or bill of exceptions. It will do this rather than affirm a judgment which, upon adequate review, might be found to be erroneous. It seems to be the rule, too, in the criminal court of appeals in Oklahoma, that the trial court may award a new trial on similar grounds (Elliott v. State, 5 Okla. Crim. Rep. 63, 113 Pac. 213),. but the supreme court of that state has steadily adhered to the rule that the loss of stenographic notes is not a sufficient ground for a new trial. Butts v. Anderson, 19 Okla. 369, 91 Pac. 906; Whitely v. St. Louis, E. R. & W. R. Co. 29 Okla. 63, 116 Pac. 165; Farmers’ & M. Bank v. Welborn, 32 Okla. 1, 121 Pac. 620; see also Peterson v. Lundquist, 106 Minn. 339, 119 N. W. 50. Also, that the statutory grounds for a new trial exclude all others. St. Louis, I. M. & S. R. Co. v. Lewis, 39 Okla. 677, 136 Pac. 396; First Nat. Bank v. Farmers’ State Guaranty Bank, 62 Okla. 30, 161 Pac. 1063; Baker v. Citizens’ State Bank, — Okla. —, 177 Pac. 568. It further appears that the legislature of Oklahoma has amended the statute governing new trials in civil actions, by adding a paragraph to the effect that a new trial may be granted “when, without fault of complaining party, it becomes impossible to make case made.” Okla. Rev. Laws 1910, § 5033. See Bucy v. Ardmore Brick & Tile Co. 61 Okla. 302, L.R.A.1917B, 1073, 160 Pac. 1126.

It will be found that some of the foregoing authorities also support an equitable action looking toward relief in the shape of a new trial, where the appellant, without his fault, will lose the benefit of review by the appellate court. And some support an application, initiated by summons, in the nature of an equitable action. Bruegger v. Cartier, 20 N. D. 72, 126 N. W. 491; Marshall v. Marshall, 7 Okla. 240, 54 Pac. 461; Whitely v. St. Louis, E. R. & W. R. Co. 29 Okla. 63, 116 Pac. 165. This remedy differs materially from a motion, and does not trench upon statutes enacted to govern and simplify procedure.

Support will also be found in the authorities hereinabove cited, for the proposition that a new trial may be granted by the trial court on the ground of inability to procure a statement of the case upon appeal in jurisdictions where the grounds for the motion are not restricted or stated in the statutes. This will be found to be true in England, District of Columbia (see Hume v. Bowie, supra), Massachusetts, Texas, Vermont, and perhaps other jurisdictions.

While recognizing to the fullest extent the salutary principle for which the respondent has so ably contended, we fail to see wherein it lends legal support to the action of the trial judge in ordering a new trial in response to a motion embodying no statutory grounds, or no ground appealing to the power he could exercise of his own motion. We find no occasion to qualify our previous expressions to the effect that the statutory grounds are exclusive. It follows that the order appealed from is erroneous, and it is reversed.

Bobinson, Oh. J., and Christianson, J., concur. Grace and Bronson, JJ., concur in the result.